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IN THE CIRCUIT COURT OF COOK COUNTY_ ILLINOIS COUNTY

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IN THE CIRCUIT COURT OF COOK COUNTY_ ILLINOIS COUNTY Powered By Docstoc
					               IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
                   COUNTY DEPARTMENT, CHANCERY DIVISION

FIX WILSON YARD, INC., et al.         )
                                      )
      Plaintiff,                      )
                                      )
                                      )
vs.                                   )
                                      )     Docket No. 2008-CH-45023
CITY OF CHICAGO, et al.               )
                                      )
      Defendants.                     )
                                      )
                                      )
                                      )
                                      )




  ANONYMOUS SPEAKERS’ MEMORANDUM OF POINTS AND AUTHORITIES IN
     SUPPORT OF THEIR RENEWED MOTION TO QUASH WILSON YARD
            DEFENDANTS’ SUBPOENAS OF JANUARY 12, 2009
                              TABLE OF CONTENTS
TABLE OF AUTHORITIES......................................................................................................iv
I. INTRODUCTION ................................................................................................................1
II. BACKGROUND.................................................................................................................1
     A. Factual Background and Procedural History. ...................................................................1
     B. The Chilling Effect of Defendants’ Subpoenas. ...............................................................3
     C. Anonymous Speakers’ Repeated Efforts to Resolve the Matter and Defendants’
        Refusal to Withdraw Their Subpoenas. ...........................................................................5
III. LEGAL STANDARD .........................................................................................................6
IV. ARGUMENT......................................................................................................................7
     A. Both Oppressive and Irrelevant, the Information and Materials Sought Pursuant to
        the Subpoenas Do Not Satisfy the Requirements of Rule 201..........................................7
          1. Defendants’ Attempts to Identify Their Anonymous Critics Through the
             Discovery Process is Oppressive and Unduly Burdensome. ........................................8
          2. Defendants Have Explicitly Conceded That Much of the Information Sought
             Pursuant to Their Subpoenas Is Not Relevant. ............................................................9
          3. Discovery Regarding Defendants’ Laches Defense is Irrelevant as Plaintiffs Have
             Already Conceded – and the Court Has Already Found – That the Plaintiffs Were
             Aware of Their Potential Cause of Action Prior to June of 2006............................... 10
          4. Defendants’ Alternative Justification for Issuing the Subpoenas Is Incoherent and
             Has No Basis In Law................................................................................................ 11
          5. The Subpoenas are Overbroad, Identifying Targets Based On Criteria Irrelevant
              Even to Defendants’ Stated Defense Theories........................................................... 12
               a. Identities of Individuals Who Posted About Alderman Shiller Are Irrelevant to
                  Defendants’ Stated Defense Theories..................................................................12
               b. Subpoena Seeking “All Documents Pertaining to” the Plaintiffs Generally is
                  Overbroad...........................................................................................................13
     B. Defendants Cannot Overcome the First Amendment Qualified Privilege Protecting
        Speakers’ Right to Remain Anonymous........................................................................ 13
          1. The Right to Speak Anonymously Is Constitutionally Guaranteed. ............................ 14
          2. Anonymous Speakers Enjoy a Qualified Privilege Under the First Amendment......... 15
          3. The First Amendment Qualified Privilege Requires the Evaluation of Multiple
              Factors Prior to the Enforcement of Subpoenas Mandating the Disclosure of
              Identity Information, Factors That Weigh Strongly Against Defendants. .................. 16



                                                                  ii
             a. The Subpoenas Do Not Relate to a Core Claim or Defense. ................................18
             b. The Information Sought In Defendants’ Subpoena is Either Publicly Available or
                Available From the Plaintiffs. .............................................................................19
             c. Defendants’ Subpoenas are Oppressive and Target Political Opponents and Others
                Exercising Opinions About Matters of Public Concern. ......................................20
V.   CONCLUSION.................................................................................................................20




                                                              iii
                                                TABLE OF AUTHORITIES
Cases
Bauter v. Reding, 68 Ill. App. 3d 171 (Ill. App. 1979).................................................................6
Broadrick v. Oklahoma, 413 U.S. 601 (1973)............................................................................20
Buckley v. Am. Constitutional Law Found., 525 U.S. 182 (1999) ....................................... 15, 18
Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999)....................................16
Dendrite Int'l v. Doe No. 3, 342 N.J. Super. 134 (N.J. App. 2001)....................................... 15, 16
Doe v. 2theMart.com, 140 F. Supp. 2d 1088 (W.D. Wash. 2001) .................................. 14, 17, 18
Doe v. Cahill, 884 A.2d 451 (Del. 2005) ...................................................................................16
Enterline v. Pocono Medical Center, No. 3:08-cv-1934, 2008 WL 5192386 (M.D. Pa. Dec. 11,
  2008) ....................................................................................................................................18
Garrison v. Louisiana, 379 U.S. 64 (1964) ..................................................................................8
Grandbouche v. Clancy, 825 F.2d 1463 (10th Cir. 1987)...........................................................15
Highfields Capital Mgmt. L.P. v. Doe, 385 F. Supp. 2d 969 (N.D. Cal. 2004) ...........................16
In re All Asbestos Litigation, 385 Ill. App. 3d 386 (Ill. App. 2008) .............................................7
In re Subpoena Duces Tecum to AOL, LLC, 550 F. Supp. 2d 606 (E.D. Va. 2008) .....................9
Independent Newspapers, Inc. v. Brodie, 966 A.2d 432 (Md. 2009) ..........................................17
King v. Burlington Northern & Santa Fe Ry. Co., 538 F.3d 814 (7th Cir. 2008) ..........................9
La Societe Metro Cash & Carry France v. Time Warner Cable, No. CV030197400S, 2003 WL
  22962857 (Conn. Super. Dec. 02, 2003)................................................................................18
Leeson v. State Farm Mut. Auto. Ins. Co., 190 Ill. App. 3d 359 (Ill. App. 1989) ................. 6, 7, 9
May Centers, Inc. v. S.G. Adams Printing and Stationery Co., 153 Ill. App. 3d 1018 (Ill. App.
 1987) ......................................................................................................................................6
McIntyre v. Ohio Elections Comm’n, 514 U.S. 334 (1995) .......................................................14
Mobilisa, Inc. v. Doe, 217 Ariz. 103 (Ariz. App. 2007).............................................................17
NAACP v. Alabama, 357 U.S. 449 (1958) ................................................................................13
New York Times Co. v. Sullivan, 376 U.S. 254 (1964) ....................................................... 14, 15

Norskog v. Pfiel, 197 Ill. 2d 60 (Ill. 2001).................................................................................18



                                                                     iv
People ex rel. General Motors Corp. v. Bua, 37 Ill.2d 180 (Ill. 1967) ........................................12
People v. Rodriguez, 119 Ill. App. 3d 575 (Ill. App. 1983)..........................................................7
People v. White, 116 Ill. 2d 171 (Ill. 1987)......................................................................... passim
Polito v. AOL Time Warner, Inc., No. Civ. A. 03CV3218, 2004 WL 3768897 (Pa. Com. Pl. Jan
  28, 2004)...............................................................................................................................18
R.A.V. v. City of St. Paul, Minn., 505 U.S. 377 (1992) ...............................................................9
Reda v. Advocate Health Care, 199 Ill. 2d 47 (Ill. 2002) ...........................................................18
Reno v. ACLU, 521 U.S. 844 (1997) ........................................................................................14
Shelley v. Kraemer, 334 U.S. 1 (1948)......................................................................................15
Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977) ................................................15
Snoddy v. Teepak, Inc., 198 Ill. App. 3d 966 (Ill. App. 1990) ...................................................13
Sony Music Entm't Inc. v. Does 1-40, 326 F. Supp. 2d 556 (S.D.N.Y. 2004).............................15
Statland v. Freeman, 112 Ill.2d 494 (Ill. 1986) ............................................................................6
Talley v. California, 362 U.S. 60 (1960)....................................................................................14
Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. 2004)..............................................................20
U.S. v. Nixon, 418 U.S. 683 (1974).............................................................................................7
Willeford v. Toys R US-Delaware, Inc., 385 Ill. App. 3d 265 (Ill. App. 2008) ............................7
Statutes
18 U.S.C. §§ 2701 et. seq............................................................................................................9
Illinois Supreme Court Rule 201 ........................................................................................ passim




                                                                     v
                                     I.     INTRODUCTION
       While the Court in July took the preliminary step of temporarily blocking enforcement of
Defendants’ baseless subpoenas, this step has proven insufficient. Even though the Plaintiffs
have filed an amended complaint, Defendants refuse to justify or withdraw their subpoenas and
continue to chill debate about their development project. Because of this ongoing chilling effect,
and because the subpoenas are demonstrably baseless, Anonymous Speakers ask the Court to
remove the threat in its entirety.
       This matter is ripe and should be decided now.          The continued existence of these
sweeping, invasive, and ultimately irrelevant subpoenas imposes a tremendous burden on not
only the Anonymous Speakers themselves but also on the community as a whole that has
effectively been told that critics will be targeted and exposed. Without an affirmative statement
by this Court confirming that the subpoenas are unenforceable and that the Defendants cannot
revisit such tactics in the future, Defendants will be able to lord such threats over their targets
indefinitely. Speech commenting on government-sponsored activity enjoys the most robust
protection under the First Amendment and must be defended with “exacting scrutiny.” Any
attempt to utilize the judicial system that unnecessarily chills that protected speech must fail.
Anonymous Speakers respectfully ask this Court to quash Defendants’ subpoenas and prevent
them from issuing such discovery in the future.

                                      II.   BACKGROUND
       A.      Factual Background and Procedural History.
       On December 3, 2008, Plaintiffs community organization Fix Wilson Yard, Inc., and
several individual Chicago residents – Judith A. Pier, D. Richard Quigley, Judy Glazebrook,
Katherine Boyda, Lukas Ceha, and Pat Reuter – filed a complaint against Defendants City of
Chicago and six firms affiliated with Holsten Real Estate Development Corp. challenging
Chicago ordinances that established the Wilson Yard development project in the Uptown
neighborhood of Chicago. On January 12, 2009, Defendants issued sweeping subpoenas seeking

the identities of Wilson Yard development critics to Internet corporation Google (operator of the

                                                    1
blogger.com service used by two of the targeted anonymous speakers), the Buena Park
Neighbors (“BPN”) neighborhood association (which links to a message board on which users
can anonymously post messages on a variety of subjects), and to the Uptown Neighborhood
Council, a “grassroots organization of Uptown residents” that operates a blog commenting on
news regarding the Uptown area of Chicago.1 The operators of the two blogs whose information
is sought pursuant to the subpoena to Google (“What the Helen” and “Uptown Update”) and the
Buena Park Neighbors (collectively, the “Anonymous Speakers”2) bring this motion to quash
and for a protective order.
       The subpoena issued to Google requires it to produce “[a]ll documents . . . related to the
identity of the person or persons who created and/or control ‘What the Helen.com’ and ‘Uptown
Update’ blogs and websites.” The “What the Helen” blog, now defunct, provided commentary
on the 2007 election campaign of Alderman Helen Shiller who presided over the planning
process for the Wilson Yard development. Subpoena of January 12, 2009, to Google, Inc.,
Exhibit A to the Declaration of Matthew J. Zimmerman (“Zimmerman Decl.”). The “Uptown
Update” blog, which was launched in May of 2007, presents discussion on a range of local
political issues of particular interest to the Uptown neighborhood, including the Wilson Yard
development.
       The subpoena issued to Buena Park Neighbors requires that organization to produce:
           1. All documents showing posts on [BPN’s] web site [sic], whether in
               the form of a blog, chat room comment, website post or any other
               form that relates to the Wilson Yard development, Adlerman
               Shiller, or Uptown development;




1
  Defendants’ have apparently failed to file their non-party discovery requests with the Court as
required by Rule 201(o) (“Not withstanding the foregoing, a copy of any discovery request under
these rules to any nonparty shall be filed with the clerk in accord with Rule 104(b).”
2
  Uptown Neighborhood Council is not represented by the undersigned council and is not
participating in this motion to quash.

                                                   2
            2. All documents identifying information [sic] on persons who have
                posted, in any form, on [BPN’s] website involving the Wilson
                Yard development, Alderman Shiller, or Uptown development;
            3. All documents pertaining to the following persons: Judith A. Pier,
                D. Richard Quigley, Judy Glazebrook, Katherine Boyda, Lukas
                Ceha or Pat Reuter;
            4. All documents pertaining to the Wilson Yard development.
Subpoena of January 12, 2009, to Buena Park Neighbors, Exhibit B to Zimmerman Decl.
       On January 16, 2009, Defendants filed a motion to dismiss the complaint, and the Circuit
Court granted Defendants’ motion on May 19, 2009. See Order of January 16, 2009, Granting
Motion to Dismiss, Exhibit C to Zimmerman Decl. On June 22, 2009, Anonymous Speakers
filed a motion to quash based solely on the grounds that Defendants’ subpoenas were invalid in
the absence of an operative complaint. On July 9, 2009, in part as a result of Defendants’
argument that Plaintiffs might file an amended complaint in short order, the Court indefinitely
stayed enforcement of the subpoenas and authorized the Anonymous Speakers to file a
supplemental motion if appropriate. See Order of July 9, 2009, Exhibit D to Zimmerman Decl.
Plaintiffs then filed an amended complaint on July 24, 2009, that provides no new basis for the
continuation of Defendants’ subpoenas. Defendants have indicated that they will not withdraw
their subpoenas and, when pressed, have been unable to provide any new basis for them in light
of Plaintiffs’ new complaint.

       B.       The Chilling Effect of Defendants’ Subpoenas.
       The reaction to Defendants’ tactics – issuing subpoenas aimed at outing grassroots critics
of their project and the primary elected official promoting it – was predictable. In the week after
news of the subpoenas broke, Uptown Update readers posted over 100 comments decrying the
move, describing the blunt tactic as (among other things) a “witch hunt,” “intimidation,”
“harassment,” “creepy,” “disheartening,” “desperate,” “politically motivated,” “corrupt,” and

“bully[ing].”     Uptown Update, News-Star: “Hosten’s Attorney Subpoenas Google,”


                                                    3
UptownUpdate.com, January 28, 2009, located at http://www.uptownupdate.com/2009/01/news-
star-holstens-attorney-subpoenas.html, Exhibit E to Zimmerman Decl.            Posters repeatedly
observed that if the Defendants successfully unmasked their anonymous critics, “that person or
persons could face some sort of retribution.” Id. Others noted the apparent connection between
Alderman Shiller’s son Brendan – along with his mother, a frequent target of criticism on the
targeted websites – and Defendants’ counsel Tom Johnson who share an office suite. Id. The
Chicago Journal, and later the Chicago Tribune, wrote stories about the subpoenas, with the
Tribune calling the subpoenas the “latest salvo in a decade-long fight over the development, one
that plays off class warfare and dueling political agendas over a sprawling tract of land in
Uptown.” James Janega, Wilson Yard Developer Fights to Unmask Uptown Bloggers, Chicago
Tribune, February 12, 2009, located at http://archives.chicagotribune.com/2009/feb/12/local/chi-
uptown_update_city_zonefeb12, Exhibit F to Zimmerman Decl. Plaintiffs’ counsel Thomas
Ramsdell described the subpoenas as “politically motivated in a way to harass and intimidate the
plaintiffs and anyone else who might support them,” noting that if he had a legitimate need for
the information, “[a]ll [Defendants’ counsel] needed to do was serve us with a request . . .
asking us if any of the plaintiffs were blogging at this time.” Id. University of Tennessee law
professor and political blogger Glenn Reynolds offered perhaps the more succinct observation:
“Expose Chicago politicians and their cronies, and they’ll try to expose you, I guess.” Glenn
Reynolds, Chicago Bloggers Threatened, Instapundit.com, February 7, 2009, located at
http://pajamasmedia.com/instapundit/69015/.
       Since the subpoenas were issued, What the Helen – which frequently criticized the
actions of Alderman Shiller and her son and was first disabled in 2007 – has remained quiet.
See, e.g., Lorraine Swanson, Quash ‘Em, Lake Effect News, June 24, 2009, located at
http://www.lakeeffectnews.com/2009/06/24/quash-em/, Exhibit G to Zimmerman Decl.               The
“Wilson Yard Discussion” area on the BPN message board, which garnered over 1,200 posts
since its inception in 2005, has not seen a single post since the issuance of the subpoenas seeking

the identities of their commentators, and the traffic on the site has largely dried up as well,


                                                    4
leading one poster to ask in May of this year: “What happened to BPN? This board is d-e-a-d.”
“What Happened to BPN?” discussion threat on Buena Park Neighbors message board, May 24,
2009, to June 18, 2009, located at http://buenaparkneighbors.yuku.com/topic/1634/t/what-
happened-to-BPN.html, Exhibit H to Zimmerman Decl. While Uptown Update continues to
publish regularly about the Wilson Yard development project and about the Uptown
neighborhood generally, the subpoena threat clearly remains on the minds of local residents and
other observers critical of the Defendants’ development project. See, e.g., Comment to Lake
Effect News Article, Exhibit G to Zimmerman Decl. (“Given Ald. Shiller’s history of retaliation,
there is every reason to be fearful.”).

       C.      Anonymous Speakers’ Repeated Efforts to Resolve the Matter and
               Defendants’ Refusal to Withdraw Their Subpoenas.
       To date, Defendants have taken not a single affirmative step to protect the rights of the
Anonymous Speakers. Counsel for Anonymous Speakers has repeatedly asked Defendants’
counsel to withdraw or justify the subpoenas, requests that have been steadfastly refused.
Instead of addressing the substance (or lack thereof) of his subpoenas, Defendants’ counsel has
repeatedly suggested delays while one after another illusory deadline has come and gone. And
despite repeated attempts by counsel for the Anonymous Speakers to broker a meet-and-confer
call between the parties to resolve any discovery differences, Defendants’ counsel has apparently
never contacted the Plaintiffs to discuss the issue. Zimmerman Decl. at ¶ 14. Only when it
became clear that Defendants had no interest in addressing the abusive nature of their subpoenas,
and that they were content with the status quo – legal threats hanging over the heads of their
critics – did Anonymous Speakers seek the Court’s assistance to stay the subpoenas (granted on
July 9, 2009) and now to quash them for their substantive failings.
       While the ability of parties to obtain information necessary to support the merits of their
legal positions is unquestioned, so is the need to “prevent unreasonable annoyance, expense,
embarrassment, disadvantage, or oppression.” Rule 201 (c)(1). Defendants have no legitimate

need for the invasive material sought or for the continued threat posed by the subpoenas



                                                    5
themselves. As Defendants have conceded, they cannot justify the subpoenas on substantive
grounds but instead believe that it is appropriate to leave their subpoena targets in legal limbo
until they can come up with a justification.       Defendants are incorrect.     Accordingly, the
subpoenas must be quashed to remove the unwarranted legal threat from the middle of a live
discussion about a matter of tremendous local public concern.

                                  III.   LEGAL STANDARD
       Pursuant to Illinois Supreme Court Rule 201(b)(1), “a party may obtain by discovery full
disclosure regarding any matter relevant to the subject matter involved in the pending action,
whether it relates to the claim or defense of the party seeking disclosure or of any other party[.]”
This authorization to pursue relevant discovery is limited by (among other things) Rule 201(c)
which states that a court may “make a protective order as justice requires, denying . . . discovery
to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or oppression.” To
protect against such undue and unreasonable outcomes, litigants’ “right to discovery is limited to
disclosure of matters that will be relevant to the case at hand[.]” Leeson v. State Farm Mut.
Auto. Ins. Co., 190 Ill. App. 3d 359, 366 (Ill. App. 1989). For discovery purposes, “[r]elevancy
is determined by reference to the issues, for generally, something is relevant if it tends to prove
or disprove something in issue.” Bauter v. Reding, 68 Ill. App. 3d 171, 175 (Ill. App. 1979).
       In addition to quashing a subpoena that exceeds the discovery limitations of Rule 201,
courts may in their discretion enter a protective order barring litigants from seeking sensitive
discovery materials in the future if “justice requires.” See, e.g., Statland v. Freeman, 112 Ill.2d
494, 499 (Ill. 1986) (upholding protective order where litigant intended to use sensitive
discovery material for purposes unrelated to the merits of the underlying case); May Centers, Inc.
v. S.G. Adams Printing and Stationery Co., 153 Ill. App. 3d 1018 (Ill. App. 1987) (“There is
ample precedent for the entry of a protective order preventing dissemination of sensitive
discoverable materials to third parties or for purposes unrelated to the lawsuit.”). “Rule 201(c)
does not contain any language expressly requiring a showing of good cause before a protective




                                                     6
order may be entered.” Willeford v. Toys R US-Delaware, Inc., 385 Ill. App. 3d 265 (Ill. App.
2008).

                                      IV.    ARGUMENT
         Two separate grounds exist to quash Defendants’ subpoenas.         First, the Defendants
cannot meet the discovery requirements of the Illinois Supreme Court Rules.             See Rules
201(b)(1), 201(c)(1).     Second, even if the information they seek is somehow relevant,
Defendants cannot meet the heightened First Amendment requirements demanded of litigants
seeking the identities of anonymous speakers via the discovery process, requirements that
litigants demonstrate that the information sought is necessary to their defense, that the
information sought cannot be obtained through any alternative means, and that the discovery was
not issued for an improper purpose.

         A.     Both Oppressive and Irrelevant, the Information and Materials Sought
                Pursuant to the Subpoenas Do Not Satisfy the Requirements of Rule 201.
         It is axiomatic that a litigant may not engage in discovery “fishing expeditions” in the
hopes of stumbling across information relevant to his or her case. See, e.g., U.S. v. Nixon, 418
U.S. 683, 699 (1974) (“[I]n order to require production prior to trial, the moving party must show
. . . that the application is made in good faith and is not intended as a general ‘fishing
expedition.’”); People v. Rodriguez, 119 Ill. App. 3d 575 (Ill. App. 1983) (quashing a subpoena
proper in order to prevent the “use of the discovery process” as a “mere ‘fishing expedition[.]’”).
While the “relevancy” requirement set forth in the Rule 201 establishes an easily-cleared hurdle
for litigants with legitimate discovery needs, subpoenas may only issue if that requirement is
met, and met in advance. See, e.g., In re All Asbestos Litigation, 385 Ill. App. 3d 386, 389 (Ill.
App. 2008) (“[A] court should deny discovery requests when there is insufficient evidence that
the requested discovery is relevant or will lead to such evidence.”); Leeson, 190 Ill. App. 3d at
368 (1989) (finding trial court abused its discretion in ordering compliance with dragnet
discovery subpoena request “absent some preliminary showing of materiality and relevancy. . .”).




                                                    7
As Defendants’ subpoenas seek information irrelevant to the “actual issues in the case,” the
subpoenas must be quashed.
       Over the past six months, Defendants have only offered two plainly insufficient grounds
for the issuance of their subpoenas. Defendants first argue that the information sought is relevant
to their laches defense; that is, that the Plaintiffs “knew of the TIF ordinances after they were
adopted and at a time where they could have filed a timely challenge, i.e. before June of 2006.”
E-mail of February 11, 2009, from Tom Johnson to Matthew Zimmerman, Exhibit I to
Zimmerman Decl. Defendants next argue that the information sought is relevant to their defense
of “the constitutional claim brought” by the Plaintiffs:     “I am also interested in the many
statements that indicate the speaker is not opposed to the TIF ordinances or TIF subsidies,
provided the money is not used for low-income housing. This bears directly on the constitutional
claim that has been advanced.” Id. Not only do neither basis satisfy Rule 201’s relevancy
requirement, they do not justify the remarkable overbreadth and patently offensive nature of the
subpoenas.

               1.     Defendants’ Attempts to Identify Their Anonymous Critics Through
                      the Discovery Process is Oppressive and Unduly Burdensome.
       Defendants’ subpoenas should be quashed because they are improper threats to out
anonymous critics of their development project.         The common denominator among the
Anonymous Speakers whose identities were subpoenaed is that they feature the writings of
strong critics of the Defendants’ project. Even when repeatedly given the opportunity to try to
minimize the threatening scope of the subpoenas for the purpose of avoiding this obvious
criticism, counsel for Defendants has steadfastly refused to budge. Defendants were surprisingly
direct with their subpoena targets, making no attempt whatsoever to tailor the subpoenas to avoid
the inherent First Amendment harm, instead targeting them solely on the basis of their political
speech. See, e.g., People v. White, 116 Ill. 2d 171, 177 (Ill. 1987) (“[S]peech concerning public
affairs is more than self-expression; it is the essence of self-government.”) (quoting Garrison v.

Louisiana, 379 U.S. 64, 74-75 (1964); R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 422



                                                    8
(1992) (“Core political speech occupies the highest, most protected position.”). Such a clumsy
attempt, one that has conveyed a chilling message to the community, is inappropriate and cannot
stand.
         Moreover, many of documents sought from BPN constituting copies of web site postings
– e.g., “All documents showing posts on your organization’s web site” relating to various
subjects – are readily available to Defendants themselves who are free to collect them. It is not
the job of discovery targets to do Defendants’ research for them. See, e.g., Leeson, 190 Ill. App.
3d at 368 (discovery quashed where relevancy was minimal and compliance would have required
defendant to spend significant time and effort searching computer records); King v. Burlington
Northern & Santa Fe Ry. Co., 538 F.3d 814, 819 (7th Cir. 2008) (denial of discovery deadline
not an abuse of discretion where information was publicly available). Especially as this would
impose a significant burden on a small neighborhood association and as Defendants obviously
have the resources to search the publicly available materials themselves, Defendants’ attempts to
take a short-cut by subpoenaing third parties should be denied.3

               2.     Defendants Have Explicitly Conceded That Much of the Information
                      Sought Pursuant to Their Subpoenas Is Not Relevant.
         The subpoenas must also be quashed because they simply do not seek information
relevant to the case. In early February of this year, when asked for the basis for the subpoenas,
Defendants’ counsel Tom Johnson stated that the identities of Defendants’ online critics were
somehow relevant to Defendants’ intended laches and statute of limitations defenses because if it
turned out that anonymous online criticism could be tied to the Plaintiffs, it would show “that
they knew of the TIF ordinances after they were adopted and at a time where they could have
filed a timely challenge, i.e. before June of 2006.” Exhibit I to Zimmerman Decl. Statements

3
  To the extent that Defendants actually seek online communications not publicly available, the
subpoenas must also be quashed as they are barred under the federal Stored Communications
Act, 18 U.S.C. §§ 2701 et. seq.; In re Subpoena Duces Tecum to AOL, LLC, 550 F. Supp. 2d
606, 611 (E.D. Va. 2008) (“Applying the clear and unambiguous language of § 2702 to this case,
AOL . . . may not divulge the contents of . . . electronic communications . . . because the
statutory language of the [Stored Communications Act] does not include an exception for the
disclosure of electronic communications pursuant to civil discovery subpoenas.”).

                                                    9
made after June of 2006, according to Johnson, did not implicate such defenses. Id. When
shown that all of the statements of one of the Anonymous Speakers apparently took place after
June of 2006, Johnson conceded that “the fact that Uptown Update may not have started until
2007 would seem to make it irrelevant on the limitations question . . .” Id.
       Of the two subpoenas at issue in this motion, the subpoena to Google – seeking “the
identity of the person or persons who created and/or control ‘What the Helen.com’ [sic] and
‘Uptown Update’ blogs and websites” – solely implicates online statements made during or after
June of 2006. The “whatthehelen.com” domain name was first registered in June of 2006 (see
Whois.com     domain     name     registration   record   for   whatthehelen.com,    located   at
http://www.whois.net/whois/whatthehelen.com, Exhibit J to Zimmerman Decl.) and the Uptown
Update blog began in May of 2007 (see Uptown Update, Welcome to the First Posting,
UptownUpdate.com, May 15, 2007, located at http://www.uptownupdate.com/2007/05/welcome-
to-first-posting.html, Exhibit K to Zimmerman Decl.). Moreover, many of the statements made
on the BPN message board (sought pursuant to the second subpoena) were made solely by online
speakers who did not post content prior to June of 2006. See generally Buena Park Neighbors
Message Board, located at http://buenaparkneighbors.yuku.com. While the laches basis does not
actually satisfy Rule 201’s relevancy requirement (as discussed below), and must also fail
because of those separate substantive failings, the subpoenas must be quashed and a protective
order should be granted to the extent that Defendants seek the identities of these “post-June
2006” speakers based solely on their laches justification as none of the statements at issue took
place during the period self-identified by Defendants as relevant.

               3.      Discovery Regarding Defendants’ Laches Defense is Irrelevant as
                       Plaintiffs Have Already Conceded – and the Court Has Already
                       Found – That the Plaintiffs Were Aware of Their Potential Cause of
                       Action Prior to June of 2006.
       The identities of pre-June 2006 anonymous online critics are in fact irrelevant to any
laches defense Defendants may choose to bring. Defendants apparently believe that evidence

that the Plaintiffs “knew of the TIF ordinances after they were adopted and at a time where they



                                                    10
could have filed a timely challenge, i.e. before June of 2006” would help show that one of
Plaintiffs’ claims is time-barred. Exhibit I to Zimmerman Decl. This argument is fatally flawed,
however, as Plaintiffs have already admitted that they were actually aware of the availability of
their potential TIF Act claim at least as far back as 2004. See Exhibit C to Zimmerman Decl. at
p. 5 (citing the Plaintiffs’ Answers to the Defendants’ First Set of Interrogatories “show that
Plaintiffs began actively opposing the Redevelopment Plan in 2004.”). Furthermore, the Court
has found that knowledge of the potential claim is imputed to Plaintiffs all the way back to June
of 2001. See id. at p. 5 (noting that the June 2001 adoption of the TIF ordinances was a matter of
public record and that the “Complaint does not allege that Plaintiffs were prevented from
learning of the passage of the Ordinances.”). As there is no factual dispute regarding when the
Plaintiffs were aware of any potential TIF Act claim, and no new contradictory factual
allegations have been made in the Plaintiffs’ amended complaint,4 discovery aimed at
establishing that fact is irrelevant.

                4.      Defendants’ Alternative Justification for Issuing the Subpoenas Is
                        Incoherent and Has No Basis In Law.
        Defendants alternatively argue that their subpoenas seeking the identities of anonymous
critics are justified because some online critics have criticized the Wilson Yard development
project but concurrently do not appear to be “opposed to the TIF ordinances or TIF subsidies,

4
  While Plaintiffs have since amended their TIF Act claim since the Court granted Defendants’
motion to dismiss, this amendment does not materially affect Defendants’ laches argument. In
Count I of their original verified complaint of December 2, 2008, Plaintiffs alleged that
Defendants violated the TIF Act by (a) improperly declaring the Wilson Yard property a
“conservation area” subject to redevelopment under the statute and (b) improperly finding that
the property “would not reasonably be anticipated to be developed without the adoption of the
redevelopment plan.” 65 ILCS 5/11-74.4-2(b), 65 ILCS 5/11-74.4-3(m)(J). In their motion to
dismiss filed January 16, 2009, Defendants argued that Count I was barred by the doctrine of
laches, noting that Plaintiffs had waited over seven years after the passage of the ordinances
which adopted the redevelopment plan and approved TIF financing to bring their claim. In their
amended complaint, filed July 17, 2009, Plaintiffs again allege that the Defendants violated the
TIF Act, this time arguing that the Defendants failed to “amend its Redevelopment Plan prior to
incurring project redevelopment costs that are inconsistent with the program set forth in the
plan.” Amended Complaint ¶¶ 30-37; 65 ILCS 5/11-74.4(b). Any laches defense raised to the
revised TIF Act claim would implicate the same factual issues implicated by the first TIF Act
claim which the Court has already found was barred by laches.

                                                   11
provided the money is not used for low-income housing.” Exhibit I to Zimmerman Decl. As
Defendants’ counsel explained the argument in a February 2009 e-mail, “This bears directly on
the constitutional claim that has been advanced.” Id.
       Defendants’ argument is incoherent and by no means meets the relevancy requirement set
forth in Rule 201. Defendants appear to argue that Plaintiffs’ TIF Act challenge may fail
because some of the Plaintiffs might not be subjectively motivated by a desire to challenge the
ordinances for dry legalistic reasons and may instead secretly (or not-so-secretly) harbor a desire
to replace Defendants’ proposed development plan with one which they favor; that is, the
Plaintiffs might not raise such a fuss “provided the money is not used for low-income housing.”
Id. Such hypothetical motivations are of no moment to Plaintiffs due process challenge or
Defendants’ defense. Defendants’ suggested “hypocrisy challenge” has no support in law and
cannot justify the issuance or continuation of the challenged subpoenas.

               5.     The Subpoenas are Overbroad, Identifying Targets Based On Criteria
                      Irrelevant Even to Defendants’ Stated Defense Theories.
       Even if Defendants’ laches and “Plaintiff hypocrisy” theories were valid defenses, much
of the information sought through the subpoenas is not even related to those theories. As
litigants are not entitled to issue overbroad subpoenas – even to support valid theories – much of
the information sought in the subpoenas can never be compelled for this reason alone. See, e.g.,
People ex rel. General Motors Corp. v. Bua, 37 Ill.2d 180, 193-94 (Ill. 1967) (discovery in
automobile accident case seeking manufacturer records for subsequent year models – amounting
to a “catch-all demand for production of documents without the slightest degree of specificity” –
“ought not have been ordered without some preliminary showing of materiality and relevancy.”).

                      a.      Identities of Individuals Who Posted About Alderman Shiller
                              Are Irrelevant to Defendants’ Stated Defense Theories.
       The BPN subpoena seeks, among other things, “All documents identifying information
[sic] on persons who have posted, in any form, on [BPN’s] website involving . . . Alderman
Shiller.” Discussions of elected officials, even one who champions the development project it




                                                   12
issue in this case, are irrelevant to any theory offered by the Defendants. Discovery regarding the
identity of such speakers is unwarranted.

                       b.      Subpoena Seeking “All Documents Pertaining to” the Plaintiffs
                               Generally is Overbroad.
       The BPN subpoena also broadly seeks “[a]ll documents pertaining to” the Plaintiffs.
Even under the liberal rules of discovery, this request must be denied as they are “broad and not
calculated to develop specific probative evidence” regarding outstanding issues in this case.
Snoddy v. Teepak, Inc., 198 Ill. App. 3d 966, 969 (Ill. App. 1990). “All documents” in BPN’s
position could by definition be anything, including membership information and (as more fully
discussed below) unpublished opinions by non-parties unrelated to anything posted on the web
site.5 Buena Park Neighbors cannot be compelled to disclose such information on a litigant’s
whim as Defendants seek to do here, engaging in baseless “fishing expeditions . . . conducted
with the hope of finding something relevant.” Id. See also, e.g., White, 116 Ill. 2d at 177
(quoting NAACP v. Alabama, 357 U.S. 449, 461 (1958)) (“The effect of broadly compelling
disclosure of the identities of persons expressing political views is ‘unconstitutional intimidation
of the free exercise of the right to advocate.’”); NAACP, 357 U.S. at 460 (“Freedom to engage in
association for the advancement of beliefs is an inseparable aspect of the liberty assured by the
due process clause of the First Amendment.”).

       B.      Defendants Cannot Overcome the First Amendment Qualified Privilege
               Protecting Speakers’ Right to Remain Anonymous.
       Defendants’ subpoenas must also be quashed on the separate grounds that Defendants
cannot overcome the First Amendment qualified privilege that protects anonymous speakers.
Defendants’ subpoenas, which aim to unmask anonymous speakers solely on the basis of their
political speech, plainly do not qualify. Under the broad protections of the First Amendment and
Article I, section 4, of the Illinois Constitution, speakers have not only a right to criticize public
policies and governmental officials – speech that “may well include vehement, caustic, and


5
  Once again, the Stored Communications Act bars any attempt to compel disclosure of
electronic communications through the use of civil discovery subpoenas. See, supra, footnote 3.

                                                     13
sometimes unpleasantly sharp attacks on government and public officials”6 – but also the right to
do so anonymously. This protection exists in addition to, and provides a much stronger level of
protection than, that provided to discovery targets under Rule 201. Both the First Amendment
and the Illinois Constitution require that those who seek to unmask vocal critics demonstrate a
compelling need for such identity-related information before proceeding with discovery. No
such need is implicated in this case.

                1.     The Right to Speak Anonymously Is Constitutionally Guaranteed.
         The United States Supreme Court has consistently defended the right to anonymous
speech in a variety of contexts, noting that “[a]nonymity is a shield from the tyranny of the
majority . . . [that] exemplifies the purpose [of the First Amendment] to protect unpopular
individuals from retaliation . . . at the hand of an intolerant society.” McIntyre v. Ohio Elections
Comm’n, 514 U.S. 334, 357 (1995). See also, e.g., id. at 342 (“[A]n author’s decision to remain
anonymous, like other decisions concerning omissions or additions to the content of a
publication, is an aspect of the freedom of speech protected by the First Amendment.”); Talley v.
California, 362 U.S. 60, 64 (1960) (finding a municipal ordinance requiring identification on
hand-bills unconstitutional, noting that “[a]nonymous pamphlets, leaflets, brochures and even
books have played an important role in the progress of mankind.”). The Illinois Supreme Court
has recognized identical rights emanating from Article I, section 4, of the Illinois Constitution.
See, e.g., White, 116 Ill. 2d at 176 (citing Talley v. California, 362 U.S. at 64) (rejecting the
argument that compelling identification without otherwise inhibiting the exercise of speech is
permissible under the First Amendment or Article I, section 4).
         These fundamental rights enjoy the same protections whether their context is an
anonymous political leaflet or an Internet blog. See Reno v. ACLU, 521 U.S. 844, 870 (1997)
(there is “no basis for qualifying the level of First Amendment protection that should be applied
to” the Internet). See also, e.g., Doe v. 2theMart.com, 140 F. Supp. 2d 1088, 1093 (W.D. Wash.
2001) (“The right to speak anonymously extends to speech via the Internet. Internet anonymity

6
    New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

                                                     14
facilitates the rich, diverse, and far ranging exchange of ideas.”). And as discussed below, these
fundamental rights protect anonymous speakers from forced identification, be they from
overbroad statutes or unwarranted discovery requests.

               2.      Anonymous Speakers Enjoy a Qualified Privilege Under the First
                       Amendment.
       Because the First Amendment protects anonymous speech and association, efforts to use
the power of the courts7 to pierce anonymity are subject to a qualified privilege.8 Courts must
“be vigilant . . . [and] guard against undue hindrances to . . . the exchange of ideas.” Buckley v.
Am. Constitutional Law Found., 525 U.S. 182, 192 (1999). This vigilant review “must be
undertaken and analyzed on a case-by-case basis,” where the court’s “guiding principle is a
result based on a meaningful analysis and a proper balancing of the equities and rights at issue.”
Dendrite Int'l v. Doe No. 3, 342 N.J. Super. 134, 142 (N.J. App. 2001). Just as in other cases in
which litigants seek information that may be privileged, courts must consider the privilege before
authorizing discovery. See, e.g., Sony Music Entm't Inc. v. Does 1-40, 326 F. Supp. 2d 556, 565
(S.D.N.Y. 2004) (“Against the backdrop of First Amendment protection for anonymous speech,
courts have held that civil subpoenas seeking information regarding anonymous individuals raise
First Amendment concerns.”); Grandbouche v. Clancy, 825 F.2d 1463, 1466 (10th Cir. 1987)
(citing Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977)) (“[W]hen the
subject of a discovery order claims a First Amendment privilege not to disclose certain
information, the trial court must conduct a balancing test before ordering disclosure.”). As one
court described while drawing on principles relevant to the immediate case, “People who have
committed no wrong should be able to participate online without fear that someone who wishes
to harass or embarrass them can file a frivolous lawsuit and thereby gain the power of the court’s



7
  A court order, even if granted to a private party, is state action and hence subject to
constitutional limitations. See, e.g., Sullivan, 376 U.S. at 265 (1964); Shelley v. Kraemer, 334
U.S. 1, 14 (1948).
8
  See also Rule 201(b)(2) (“All matters that are privileged against disclosure on the trial . . . are
privileged against disclosure through any discovery procedure.”).

                                                     15
order to discover their identity.” Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578
(N.D. Cal. 1999).
       The constitutional privilege to remain anonymous is not absolute.           Plaintiffs may
properly seek information necessary to pursue reasonable and meritorious litigation. Id. at 578
(First Amendment does not protect anonymous Internet users from liability for tortious acts such
as defamation); Doe v. Cahill, 884 A.2d 451, 456 (Del. 2005) (“Certain classes of speech,
including defamatory and libelous speech, are entitled to no constitutional protection.”).
However, litigants may not abuse the subpoena power by targeting political opponents with
frivolous – or even marginally relevant – discovery requests. Accordingly, courts evaluating
attempts to unmask anonymous speakers in cases similar to the one at hand have adopted
consistent standards that balance one person’s right to speak anonymously with a litigant’s
legitimate need to pursue a defense. These courts have recognized that “setting the standard too
low w[ould] chill potential posters from exercising their First Amendment right to speak
anonymously,” and have required Plaintiffs to demonstrate that their defenses are valid and that
they have a need for the information before the Court will allow disclosure of the speaker’s
identity. Cahill, 884 A.2d at 457. See also Dendrite, 342 N.J. Super. at 141-42; Highfields
Capital Mgmt. L.P. v. Doe, 385 F. Supp. 2d 969 (N.D. Cal. 2004). Defendants cannot remotely
hope to satisfy this burden.

               3.      The First Amendment Qualified Privilege Requires the Evaluation of
                       Multiple Factors Prior to the Enforcement of Subpoenas Mandating
                       the Disclosure of Identity Information, Factors That Weigh Strongly
                       Against Defendants.
       While Illinois courts have not yet directly addressed challenges to discovery requests
seeking the identities of non-party Internet speakers, state and federal courts across the country
have consistently applied a standard requiring litigants to demonstrate (among things) a
compelling need for the information and an inability to obtain the information any other way, a
standard consistent with the Illinois Supreme Court’s holdings in White.         Defendants can

demonstrate neither.



                                                   16
       The Western District of Washington’s salient opinion in Doe v. 2theMart.com, supra,
remains the clearest and most widely cited guide to ensuring that non-party anonymous online
speakers receive the protection the First Amendment demands. In 2theMart.com, involving a
derivative class action suit, the defendant corporation raised 27 affirmative defenses, including
that the online postings of various anonymous third parties had caused the stock devaluation in
question. The Defendant served subpoenas on the ISP seeking the identity of 23 anonymous
speakers as well as all posted messages on the bulletin board. In quashing the subpoena, the
district court underscored the importance of the First Amendment interests and the necessary
judicial protections required to prevent litigants from abusing the discovery process:

               If Internet users could be stripped of that anonymity by a civil subpoena
               enforced under the liberal rules of civil discovery, this would have a
               significant chilling effect on Internet communications and thus on basic
               First Amendment rights. Therefore, discovery requests seeking to identify
               anonymous Internet users must be subjected to careful scrutiny by the
               courts.
140 F. Supp. 2d at 1093.
       In finding that the First Amendment required that the subpoena be quashed, the
2theMart.com court weighed four factors mandated by the First Amendment:
       (1)         whether the subpoena seeking the information was issued in good faith and
                   not for any improper purpose,
       (2)         whether the information sought relates to a core claim or defense,
       (3)         whether the identifying information is directly and materially relevant to that
                   claim or defense, and
       (4)         whether information sufficient to establish or to disprove that claim or defense
                   is unavailable from any other source.
140 F. Supp. 2d at 1095.
       This First Amendment test articulated in 2theMart.com is appropriate here and has been
approved by jurisdictions across the country.9       As the 2theMart.com court noted, its test

9
  See, e.g., Independent Newspapers, Inc. v. Brodie, 966 A.2d 432, 448-49 (Md. 2009); Mobilisa,
Inc. v. Doe, 217 Ariz. 103, 107, 111 (Ariz. App. 2007); Enterline v. Pocono Medical Center, No.

                                                    17
“provides a flexible framework for balancing the First Amendment rights of anonymous speakers
with the right of civil litigants to protect their interests through the litigation discovery process.”
While the Court was mindful of the “high burden” it imposed on litigants, “[t]he First
Amendment requires us to be vigilant in making [these] judgments, to guard against undue
hindrances to political conversations and the exchange of ideas.” Id. (citing Buckley, 525 U.S. at
192).10 Especially as Defendants have no legitimate interest in the material they seek, the First
Amendment factors weigh heavily in favor of Anonymous Speakers and of quashing the
subpoenas.

                       a.      The Subpoenas Do Not Relate to a Core Claim or Defense.
       As discussed above, instead of making even the slightest effort to draft their subpoenas to
obtain truly relevant information or, when repeatedly informed of their obvious constitutional
infirmities, to make any attempt to narrow the subpoenas in order to avoid such harm,
Defendants initiated a clumsy “fishing expedition.” Neither excuse offered by Defendants’
counsel – that some of the anonymous online critics of their government-funded development
plan might turn out to be Plaintiffs and thus relevant to Defendants’ laches defenses or relevant
to show that the Plaintiffs might not have challenged the constitutionality of the TIF ordinances
if the project at issue didn’t involve low-income housing – is remotely defensible. Plaintiffs
have already conceded, and the Court has already held, that Plaintiffs were aware of their
potential constitutional claim “before June of 2006.”           Moreover, Defendants’ alternative
“Plaintiffs don’t really mean it” defense is not legally cognizable. As neither excuse establishes



3:08-cv-1934, 2008 WL 5192386, *4-*5 (M.D. Pa. Dec. 11, 2008); Polito v. AOL Time Warner,
Inc., No. Civ. A. 03CV3218, 2004 WL 3768897, *5-7 (Pa. Com. Pl. Jan 28, 2004); La Societe
Metro Cash & Carry France v. Time Warner Cable, No. CV030197400S, 2003 WL 22962857,
*5-6 (Conn. Super. Dec. 02, 2003).
10
   See also, e.g., Reda v. Advocate Health Care, 199 Ill. 2d 47, 59 (Ill. 2002) (“Although
defendants might be denied access to information that could benefit their case, any ‘unfairness’
is the same that is present any time a privilege against disclosure is exercised. Evidentiary
privileges, generally, are not designed to promote the truth-seeking process, but rather to protect
some outside interest other than the ascertainment of truth at trial.”) (quoting Norskog v. Pfiel,
197 Ill. 2d 60, 83 (Ill. 2001) (internal citations omitted).

                                                      18
relevancy, Defendants’ subpoenas must be quashed because Defendants cannot satisfy the
obligations of the First Amendment.

                       b.      The Information Sought In Defendants’ Subpoena is Either
                               Publicly Available or Available From the Plaintiffs.
       Even assuming that any of the identity information sought in the subpoenas is relevant,
Defendants have a more obvious and more appropriate source:             the Plaintiffs themselves.
Indeed, Defendants’ first excuse for not withdrawing the subpoenas was that the Anonymous
Speakers should wait for the Plaintiffs to respond to discovery requests asking them to identify
all of their online personas. See Exhibit I to Zimmerman Decl. Leaving aside the lack of
relevancy of such requests, if Defendants wish to obtain such information, they must do so from
the Plaintiffs and not from non-parties.11 See, e.g., White, 116 Ill. 2d at 181 (statute prohibiting
the publication of political literature which does not show name and address of authors, passed in
part to further a state goal of preventing defamatory speech, “unnecessarily restricts protected
expression and thus cannot be considered the least drastic alternative”). Indeed, such a course
would guarantee that Defendants obtain only relevant information about the Plaintiffs and not do
collateral damage to others engaged in protected speech.
       Any failure on behalf of the Plaintiffs so far to provide discovery responses on these
subjects to the satisfaction of the Defendants is irrelevant because Defendants have failed to
pursue the matter directly with the Plaintiffs.      When Defendants’ counsel announced that
Plaintiffs’ discovery responses were insufficient, counsel for the Anonymous Speakers made
repeated “shuttle diplomacy” attempts between the parties to help satisfy any alleged
shortcomings.    See Zimmerman Decl. at ¶ 14.         Despite this, by all accounts, counsel for
Defendants has made no attempt (other than issuing the discovery requests) to obtain the
information at issue in this motion from the Plaintiffs. Id.
       Given the obligation to apply the protections of the First Amendment with “exacting
scrutiny,” Defendants’ attempt to seek a shortcut through the rights of anonymous non-parties

11
  Similarly (see supra at p. 9), Defendants are not prevented from gathering for themselves the
public “documents showing posts on your organization’s web site” concerning various subjects.

                                                     19
must fail. White, 116 Ill. 2d at 175. See also, e.g., id. at 183 (quoting Broadrick v. Oklahoma,
413 U.S. 601, 611-12 (1973)) (“It has long been recognized that the First Amendment needs
breathing space and that statutes attempting to restrict or burden the exercise of First Amendment
rights must be narrowly drawn and represent a considered legislative judgment that a particular
mode of expression has to give way to other compelling needs of society.”).

                       c.     Defendants’ Subpoenas are Oppressive and Target Political
                              Opponents and Others Exercising Opinions About Matters of
                              Public Concern.
       At best, Defendants have proven indifferent to the inappropriateness of their subpoenas.
At worst, the ongoing harm caused by their actions is intentional. In either case, the subpoenas
are unsupportable under the First Amendment and must be quashed. Attempts to out anonymous
critics solely based on the content of their political speech is anathema to the rights enshrined in
the First Amendment. Defendants have had ample opportunity to demonstrate both that their
motivation is proper and that they take the First Amendment rights of their critics seriously.
They have done neither. In the meantime, while Defendants are content to put their opponents’
rights on hold, critics must daily decide whether they want to take on litigants of virtually
unlimited means who have demonstrated that they can and will use the judicial system against
them. E-mail of February 11, 2009, from Tom Johnson to Matthew Zimmerman, Exhibit L to
Zimmerman Decl. (“I have not focused in on your subpoenas, but if I want to enforce them, the
judge said I have to file a motion in court. I will do so if I need to enforce them.”). Not
surprisingly, many have fallen silent. Anonymous Speakers ask this Court to quash the
subpoenas and remove the cloud of fear that has chilled speech and advocacy in the community.

                                     V.      CONCLUSION
       Defendants’ refusal to withdraw the subpoenas puts the Anonymous Speakers in the
untenable position of passively waiting for the parties to work out their differences before
moving to quash the illegal subpoena. As Defendants are no doubt aware, however, responding
to subpoenas – even if in the short term “only” to repeatedly negotiate extensions – is not cost-

free. See, e.g., Theofel v. Farey-Jones, 359 F.3d 1066, 1074-75 (9th Cir. 2004) (“Fighting a


                                                    20
subpoena in court is not cheap, and many may be cowed into compliance with even overbroad
subpoenas[.]”). It is up to the parties, not innocent bystanders, to bear the burden of their current
fight. Especially as the ongoing delay perpetuates the speech-chilling harm that Anonymous
Speakers challenge, the status quo cannot remain. As the First Amendment and Rule 201 bar
Defendants’ discovery efforts, the Anonymous Speakers respectfully as this Court to quash
Defendants’ subpoenas of January 12, 2009.


                                       Respectfully submitted,
Date ________________                 By
                                            Charles Lee Mudd Jr.
                                            Mudd Law Offices
                                            3114 West Irving Park Road, Suite 1W
                                            Chicago, Illinois 60618
                                            (773) 588-5410
                                            Cook County Attorney No. 38666
                                            ARDC: 6257957
                                            cmudd@muddlawoffices.com
                                            Matt Zimmerman (pro hac vice application
                                            forthcoming)
                                            Electronic Frontier Foundation
                                            454 Shotwell St.
                                            San Francisco, CA 94110
                                            (415) 436-9333 x127
                                            mattz@eff.org
                                            Attorneys for Anonymous Speakers




                                                     21

				
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